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Jessica S. Henry - Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened

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Jessica S. Henry Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened
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Named in remembrance of the onetime Antioch Review editor and longtime Bay Area - photo 1

Named in remembrance of the onetime Antioch Review editor and longtime Bay Area resident,

the Lawrence Grauman, Jr. Fund

supports books that address a wide range of human rights, free speech, and social justice issues.

Smoke but No Fire

The publisher and the University of California Press Foundation gratefully acknowledge the generous support of the Lawrence Grauman, Jr. Fund.

Smoke but No Fire
CONVICTING THE INNOCENT OF CRIMES THAT NEVER HAPPENED

Jessica S. Henry

Picture 2

UNIVERSITY OF CALIFORNIA PRESS

University of California Press

Oakland, California

2020 by Jessica S. Henry

Library of Congress Cataloging-in-Publication Data

Names: Henry, Jessica S., author.

Title: Smoke but no fire : convicting the innocent of crimes that never happened / Jessica S. Henry.

Description: Oakland, California : University of California Press, [2020] | Includes bibliographical references and index.

LCCN 2019053434 (print) | LCCN 2019053435 (ebook) | ISBN 9780520300644 (cloth) | ISBN 9780520971943 (ebook)

Subjects: LCSH : Judicial errorUnited States. | False imprisonmentUnited States.

Classification: LCC KF 9756 . H 46 2020 (print) | LCC KF 9756 (ebook) | DDC 345.73/0122dc23

LC record available at https://lccn.loc.gov/2019053434

LC ebook record available at https://lccn.loc.gov/2019053435

Manufactured in the United States of America

27 26 25 24 23 22 21 20

10 9 8 7 6 5 4 3 2 1

To those wrongly convicted of crimes that never happened

And to Ken, Jack, and Max, with all my love

CONTENTS
PREFACE

For the past ten years or so, I have taught an undergraduate course on wrongful convictions. I teach about the factors that contribute to wrongful convictions, the legal standards that apply to wrongful convictions, and the stories of innocent people whose lives are destroyed after being convicted of crimes they did not commit. I write about wrongful convictions both in academic journals and in the popular press, and present my findings at academic conferences.

Yet, despite all that I know about wrongful convictions, I was shocked to learn that nearly one-third of all known exonerations involve people wrongfully convicted of crimes that never happened. Unlike the popular understanding of a wrongful conviction, where the wrong person was convicted of a crime committed by someone else, no-crime wrongful convictions involve innocent people convicted of crimes that did not happen in the first place. At the time of this writing, more than nine hundred entirely innocent people have been arrested, prosecuted, convicted, often incarcerated, and eventually exonerated for crimes that were never committed. They simply did not occur.

And those nine hundred cases are just the ones we know about, where the person was fortunate enough to be able to clear his or her name. Most people wrongly convicted in no-crime cases are not so lucky.

When I stumbled across the data about no-crime wrongful convictions, I knew I had to learn more. I started researching. I started writing. Smoke but No Fire was born.

Smoke but No Fire has been a fascinating undertaking for me, particularly because of my own background. Before I was an academic, I was a public defender in New York City for nearly a decade. As a result, I bring to my research not just an academics perspective but also rich experience as a criminal justice practitioner. Smoke but No Fire reflects the intersection of these two worlds. It relies heavily on the legal and social science literature to explore how and why no-crime convictions happen. It also draws heavily on the nonacademic world, from newspaper articles, judicial decisions, and exoneree accounts. In connecting the two realms, this book tells the stories of innocent people wrongly caught up in the criminal justice systems net, many of whom are marginalized, poor, and people of color.

I hope you will find the chapters that follow to be eye-opening, informative, and motivating. I know writing them was for me.

ACKNOWLEDGMENTS

I have read many times that no book is written alone. This book is no exception. I could not have reached the finish line without the support of a whole host of incredibly generous people.

One of the most important decisions that a person can make is choosing a life partner. When I had the opportunity to marry Ken Waitz all those years ago, I grabbed it. Thank you, Ken. For this book alone, you edited my words, helped me with Excel spreadsheets, cheered me on, gave me space to write, and encouraged me throughout the process. You also madeand makeme laugh more than anyone I know. I am grateful for the life we have built together, and for the joy of having you by my side. Thank you. I am truly blessed.

Jack and Max, you are my reasons for being. The future is brighter with you in it. Thank you for your patience and encouragement throughout this year of writing. At least you know that I make myself write more than one draft, too.

Back in the early 1990s, I went to New York University School of Law to earn my law degree. I walked out with a pack of chosen sisters. Raman Gill, Ragini Gupta, and Miriam Spiro, you read my entire first draft (the entire draft!) with great insight, humor, and compassion. Thank you for having my back on this project, and always. Our never-ending chat is a lifeline that has saved me on more than one occasion. I love you, ladies, for everything.

A special shout-out to Raman Gill for agreeing to be interviewed for this book. In my humble opinion, she is the best criminal defense lawyer that Austin, Texas, has to offer.

James B. Jacobs was my law school mentor and has remained my dear friend for the past thirty years. He encourages me to write, and to keep on writing, even when it gets hard. My professional life would not be where it is without his support and guidance, and I am eternally thankful for his friendship.

Many dear friends from my beautiful town of Montclair and beyond encircled me with encouragement and friendship. You know who you are. Thank you.

Special mention must be made of Leslie Kaufmana brilliant professional writer and friend; thank you for your wisdom and support. Pritha Gopalan, your suggestion for a preface was brilliant. Thank you to Sarah Damaskos, for her insightful marketing ideas and her friendship. Jacquie Ruderman, our daily check-ins keep me sane, always.

To my mom, Eva Gould, who came to this country as an immigrant, you taught me the power of hard work, and you continue to inspire every day. Thank you to my mom and my sister, Cynthia Berry, for your never-ending support. We may be a small pack, but we are fierce! Dad, I think you would have been proud.

To my extended family, thank you for always being there. I love you all. A special thanks to Judy Waitz, mother-in-law extraordinaire, for her amazing dust jacket photo and her photos on my website.

Thank you to Gina DeVito, to John Lentini, to Rebecca Greenberg, to the lawyers for Rodricus Crawford, and to all the others who took time out of their busy lives to speak with me. Your generosity and assistance are much appreciated.

Thank you to Montclair State University for giving me time away from teaching to write this book.

To Israel Vasquez. You will always be remembered.

This book would not have been possible without the entire publication team at the University of California Press. To Maura Roessner, Madison Wetzell, Peter Perez and Katryce Lassle, I am thankful beyond measure that my first book was placed in such attentive, capable, and creative hands; and thanks to Steven Baker for copyediting and to Cindy Fulton for managing the books production.

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